This case was last updated from Los Angeles County Superior Courts on 12/03/2019 at 02:10:11 (UTC).

GABRIEL RAMIREZ ET AL VS ASUNCION GARCIA ET AL

Case Summary

On 07/17/2017 GABRIEL RAMIREZ filed a Personal Injury - Motor Vehicle lawsuit against ASUNCION GARCIA. This case was filed in Los Angeles County Superior Courts, Compton Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and MAURICE A. LEITER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8662

  • Filing Date:

    07/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

MAURICE A. LEITER

 

Party Details

Petitioners and Plaintiffs

RAMIREZ ALEX

RAMIREZ EFRAIN

RAMIREZ JASON ANDREW

RAMIREZ NADIA

RAMIREZ LIVIER

RAMIREZ GABRIEL

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

GARCIA ASUNCION

PARAMOUNT CITY OF

DOES 1 - 50

CALIFORNIA STATE OF

EXPERT PLANT CARE INC.

WILLDAN ENGINEERING

FERRANTE DAVID M.

WILLDAN ENGINEERING A CALIFORNIA CORPORATION ROE 2

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

HINMAN JOHN S.

IKUTA BENJAMIN TAISUKE

Defendant, Respondent and Cross Plaintiff Attorneys

BIGLEY PAUL A. ESQ.

MARIAM CRAIG JOEL

BIGLEY PAUL A.

WESIERSKI & ZUREK LLP

Cross Defendant Attorneys

SHAVER THOMAS WILLIAM

HAITH SCOTT

 

Court Documents

Answer

11/20/2019: Answer

Notice of Lodging - NOTICE OF LODGING LODGING OF COURT DOCUMENT IN SUPPORT OF CITY OF PARAMOUNT'S MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

7/11/2019: Notice of Lodging - NOTICE OF LODGING LODGING OF COURT DOCUMENT IN SUPPORT OF CITY OF PARAMOUNT'S MOTION FOR SUMMARY JUDGMENT; OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Request for Judicial Notice

8/28/2019: Request for Judicial Notice

Memorandum of Points & Authorities

8/28/2019: Memorandum of Points & Authorities

Case Management Statement

10/1/2019: Case Management Statement

Motion re: - MOTION RE: DEFENDANTS NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS DIRECTED TO THE CUSTODIAN OF RECORDS FOR GEICO, OR IN THE ALTERNATIVE, T

10/16/2019: Motion re: - MOTION RE: DEFENDANTS NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS DIRECTED TO THE CUSTODIAN OF RECORDS FOR GEICO, OR IN THE ALTERNATIVE, T

PARTIAL REQUEST FOR DISMISSAL

3/7/2018: PARTIAL REQUEST FOR DISMISSAL

Separate Statement

2/26/2019: Separate Statement

Declaration - Declaration Compendium of Evidence/Declarations in Support of Motion for Summary Judgment

2/26/2019: Declaration - Declaration Compendium of Evidence/Declarations in Support of Motion for Summary Judgment

Proof of Service - No Service

3/14/2019: Proof of Service - No Service

Amendment to Cross-Complaint (Fictitious/Incorrect Name)

3/25/2019: Amendment to Cross-Complaint (Fictitious/Incorrect Name)

Notice - NOTICE NOTICE OF RESCHEDULING OF HEARING ON DEFENDANT CITY OF PARAMOUNT'S MOTION FOR SUMMARY JUDGMENT

4/10/2019: Notice - NOTICE NOTICE OF RESCHEDULING OF HEARING ON DEFENDANT CITY OF PARAMOUNT'S MOTION FOR SUMMARY JUDGMENT

Amendment to Complaint (Fictitious/Incorrect Name)

4/30/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Notice - NOTICE DEFENDANT CITY OF PARAMOUNT'S NOTICE OF RESCHEDULING OF HEARING ON DEFENDANT CITY OF PARAMOUNT'S MOTION FOR SUMMARY JUDGMENT

5/17/2019: Notice - NOTICE DEFENDANT CITY OF PARAMOUNT'S NOTICE OF RESCHEDULING OF HEARING ON DEFENDANT CITY OF PARAMOUNT'S MOTION FOR SUMMARY JUDGMENT

Cross-Complaint

5/21/2019: Cross-Complaint

DEFENDANT CITY OF PARAMOUNT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH

8/8/2017: DEFENDANT CITY OF PARAMOUNT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH

PROOF OF SERVICE SUMMONS -

7/25/2017: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

7/31/2017: PROOF OF SERVICE SUMMONS -

65 More Documents Available

 

Docket Entries

  • 10/05/2020
  • Hearing10/05/2020 at 09:30 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Jury Trial

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  • 09/28/2020
  • Hearing09/28/2020 at 09:30 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Final Status Conference

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  • 02/25/2020
  • Hearing02/25/2020 at 09:00 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Hearing on Motion for Summary Judgment

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  • 11/21/2019
  • Docketat 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Demurrer - without Motion to Strike (by Defendant Willdan Engineering) - Not Held - Taken Off Calendar by Party

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  • 11/21/2019
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike by Defendant W...)); Filed by Clerk

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  • 11/20/2019
  • DocketAnswer; Filed by Asuncion Garcia (Defendant)

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  • 11/20/2019
  • DocketAmendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by Asuncion Garcia (Cross-Complainant)

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  • 11/14/2019
  • Docketat 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion to Quash (Subpoena) - Not Held - Taken Off Calendar by Party

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  • 11/14/2019
  • DocketDeclaration (Compendium of Evidence in Support of Defendant's Motion for Summary Judgment); Filed by Paramount, City of (Defendant)

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  • 11/14/2019
  • DocketSeparate Statement (OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,OR IN THE ALTERNATIVE,SUMMARY ADJUDICATION); Filed by Paramount, City of (Defendant)

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94 More Docket Entries
  • 08/08/2017
  • DocketSummons on Cross Complaint

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  • 07/31/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/31/2017
  • DocketProof-Service/Summons; Filed by Livier Ramirez (Plaintiff)

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  • 07/25/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/25/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/25/2017
  • DocketProof-Service/Summons; Filed by Alex Ramirez (Plaintiff); Efrain Ramirez (Plaintiff); Gabriel Ramirez (Plaintiff) et al.

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  • 07/25/2017
  • DocketProof-Service/Summons; Filed by Alex Ramirez (Plaintiff); Efrain Ramirez (Plaintiff); Gabriel Ramirez (Plaintiff) et al.

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  • 07/17/2017
  • DocketSUMMONS

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  • 07/17/2017
  • DocketComplaint; Filed by Alex Ramirez (Plaintiff); Efrain Ramirez (Plaintiff); Gabriel Ramirez (Plaintiff) et al.

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  • 07/17/2017
  • DocketCOMPLAINT FOR DAMAGES FOR WRONGFUL DEATH - SURVIVAL ACTION (CCP 377.30) AND FOR WRONGFUL DEATH (CCP 377.60) 1. NEGLIGENCE 2. DANGEROUS CONDITION OF PUBLIC PROPERTY

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Tentative Rulings

Case Number: BC668662    Hearing Date: September 08, 2020    Dept: A

# 4. Gabriel Ramirez, et al. v. Asuncion Garcia, et al.

Case No.: BC668662

Matter on calendar for: Demurrer to FAC (x2); motion to extend judgment (x2); motion to strike; motion to bifurcate

Tentative ruling:

  1. Background

    On June 29, 2016, decedent Rosa Salazar was proceeding through the intersection of Garfield Avenue and Jackson Avenue when Defendant Asuncion Garica allegedly turned left in front of her, resulting in a fatal collision. Plaintiffs allege the intersection was dangerous because there is a 49-foot offset on Jackson Street on either side of Garfield Avenue. Defendants also include Garcia’s employer, Expert Plant Care, Inc. (“EPC”), Willdan Engineering, the City of Paramount, and the State of California. Defendant Garcia filed a Cross-Complaint against Defendant City of Paramount. The City of Paramount filed a Cross-Complaint against EPC.

    The First Amended Complaint (“FAC”) alleges the following causes of action:

  1. Negligence, and

  2. Dangerous Condition of Public Property.

    On January 23, 2020, the Court sustained Willdan Engineering’s demurrer without leave to amend, because plaintiffs failed to include the certificate of merit required by Code of Civil Procedure § 411.35 when they initially served Willdan Engineering. Plaintiffs’ attempt to cure this deficiency by attaching the certificate to the FAC, filed on November 7, 2019, was inadequate; the relation-back doctrine does not apply to certificates of merit. (See Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542.)

    On March 25, 2020, plaintiffs named as defendants William Pagett, in place of Doe 5, and Willdan Group, Inc., in place of Doe 3. Plaintiffs served Pagett and Willdan Group on April 17, 2020 with the FAC, the November 7, 2019 certificate of merit, and a March 6, 2020 amended certificate of merit specifically naming Pagett and Willdan Group.

    Currently before the Court are six motions:

  1. Pagett’s demurrer to the FAC,

  2. Willdan Group’s demurrer to the FAC,

  3. Pagett’s motion for determination that this Court’s Willdan Engineering judgment is binding as to him,

  4. Willdan Group’s motion for determination that this Court’s Willdan judgment is binding as to it,

  5. Pagett’s motion to strike, to which Willdan Group joins, seeking to strike the March 6, 2020 certificate of merit, and

  6. Plaintiffs’ motion to bifurcate, which requests the Court separately try first the issue of scope of employment.

  1. Pagett and Willdan Group’s Demurrers

    1. Standard

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

    1. Analysis

Pagett and Willdan Group’s demurrers contain the same arguments and will be addressed together.

      1. Judicial notice

Willdan Group requests judicial notice of various documents filed with the Court and with the Secretary of State. The request is granted. (Evid. Code, § 452(d), (h).)

      1. Timeliness of the certificate of merit

Defendants argue the certificate required under Code of Civil Procedure § 411.35 is untimely, citing Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542.

In Curtis, a crane operator was injured on May 5, 2014 when his crane tipped over. The complaint was filed on May 3, 2016, naming as a defendant the at-fault engineer. Plaintiff did not file a certificate of merit until December 1, 2016, when plaintiff filed an amended complaint. (Curtis, supra, 16 Cal.App.5th at 545.) The issue before the court was whether the certificate was timely; specifically, whether it related back to date of the originally-filed complaint. As the court noted: “Section 411.35(a) requires that ‘on or before the date of service’ of a complaint the plaintiff ‘shall file and serve the certificate specified by subdivision (b).’ ” (Curtis, supra, 16 Cal.App.5th at 548.) The court did not find “any cases supporting the proposition that the relation-back doctrine applies to a certificate which, by statute, is required to be filed ‘on or before the date of service’ of the complaint. [C.C.P., § 411.35(a).]” (Ibid.) The court concluded that “[a]pplying the relation back doctrine in this situation would render meaningless the statutory requirement that the certificate be filed ‘on or before the date of service.’ [C.C.P., § 411.35(a).]” (Ibid.)

The instant demurrers present a situation slightly different from Curtis and the earlier demurrer by Willdan Engineering. Here, defendants Pagett and Willdan Group were named later as Doe defendants. Plaintiffs argue that the certificate is timely as to these defendants, because it was included when these defendants were first served.

Section 411.35(a) states in its entirety:

In every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect's certificate issued pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, or of a person holding a valid registration as a professional engineer issued pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or a person holding a valid land surveyor's license issued pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code on or before the date of service of the complaint or cross-complaint on any defendant or cross-defendant, the attorney for the plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b).

The plain language of the statute requires that a certificate be filed “on or before the date of service of the complaint or cross-complaint on any defendant” in every action “arising out of the professional negligence . . . of a person holding a valid registration as a professional engineer . . . .” [Emphasis added.] On its face, the requirement to file and serve the certificate arises at the start of the case and flows from the allegation of professional negligence, not from when plaintiff learns the identity of the professional.

Plaintiffs’ original complaint, dated July 17, 2017, clearly arises out of the professional negligence of individuals covered by § 411.35(a). Paragraph 24 of the complaint alleges: “Defendants CITY OF PARAMOUNT, STATE OF CALIFORNIA and DOES 1-50 inclusive, and/or their . . . designers, planners, engineers . . . or contractors . . . through negligent or wrongful acts or omissions, created, or otherwise allowed to exist a dangerous conditions [sic] of the public property that created a substantial risk of injury . . . .” (Complaint, ¶ 24.) Even if plaintiffs did not know the identities of Pagett and Willdan Group when they filed this complaint, they knew their case arose out of professional negligence by engineers.

Indeed, section 411.35(c) specifically addresses the circumstance where a defendant is added later. It states that only one certificate is required, “notwithstanding that multiple defendants have been named in the complaint or may be named at a later time.” (C.C.P. § 411.35(c), emphasis added.) Again, the certificate requirement flows from the nature of the action; it does not arise anew as additional defendants are added.

The error here is incurable. As the Curtis court held, a later-filed certificate cannot relate back to a prior complaint.

The demurrers are sustained without leave to amend. The motions to extend judgment of the Willdan Engineering decision and the motion to strike are moot.

  1. Motion to bifurcate

    1. Standard

Upon a properly noticed motion of a party made no later than the close of pretrial conference, or in other cases, no later than 30 days before the trial date, a court may bifurcate a trial into separate issues when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby. (C.C.P., § 598.) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, or of any separate issue of any number of causes of action, preserving the right of trial by jury as required by the Constitution or a statute of this state or of the United States. (C.C.P., § 1048(b).) The court has broad discretion to order a severance of trials. (See National Electric Supply Co. v. Mt. Diablo Unified School Dist. (1960) 187 Cal.App.2d 418, 421; see also Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496, 504 [“the court in its discretion shall regulate the order of proof.”].)

    1. Analysis

Plaintiffs seek to bifurcate the issue of whether defendant Garcia was acting within the course and scope of his employment with defendant EPC from the issues of liability and damages. Plaintiffs believe the vicarious liability issue can be tried in two days, while the remaining issues will require at least ten days of evidence. Plaintiffs also argue that, depending on the outcome of plaintiffs’ appeals, additional parties may be involved in the proposed second phase. In opposition, EPC argues that trial on vicarious liability would likely take four to six days, and that plaintiffs overestimate the time needed to address the remaining issues in the case. EPC does not waive its right to a jury trial.

Based on the parties’ briefs and the current procedural posture of this case, it is premature to rule on bifurcation at this time. The Court will discuss with the parties at the trial setting conference the timing and scope of a trial in this matter. The motion to bifurcate is denied without prejudice.

  1. Ruling

    The demurrers are sustained.

    The motions to extend judgment to nonparties are moot.

    The motion to strike is moot.

    The motion to bifurcate is denied without prejudice.

    Next dates:

    Notice:

Case Number: BC668662    Hearing Date: June 25, 2020    Dept: A

# 10. Gabriel Ramirez, et al. v. Asuncion Garcia, et al.

Case No.: BC668662

Matter on calendar for: Motion for Summary Judgment by Expert Plant Care, Inc.; Motion to Tax Costs (x2); Motion for Attorneys’ Fees

Tentative ruling:

  1. Background

    This is a wrongful death and survival action. On June 29, 2016, decedent Rosa Salazar was proceeding through the intersection of Garfield Avenue and Jackson Avenue when Defendant Asuncion Garica allegedly turned left in front of her, resulting in a fatal collision. Plaintiffs allege the intersection was dangerous because Jackson Street, at that intersection, has a 49-foot offset on either side of Garfield Avenue. Defendants also include Expert Plant Care, Inc. (“EPC”), Willdan Engineering, the City of Paramount, and the State of California. Defendant Garcia filed a Cross-Complaint against Defendant City of Paramount. The City of Paramount filed a Cross-Complaint against EPC.

    The First Amended Complaint (“FAC”) alleges the following causes of action:

  1. Negligence, and

  2. Dangerous Condition of Public Property

    On January 23, 2020, the Court sustained Willdan’s demurrer without leave to amend. Willdan seeks attorneys’ fees and costs.

    On February 25, 2020, the Court granted summary judgment in favor of Paramount. Paramount seeks costs.

    Plaintiffs have moved to tax Willdan’s and Paramount’s costs, and opposes Willdan’s request for attorneys’ fees.

    EPC, Defendant Garcia’s alleged employer at the time of the incident, also moves for summary judgment as to the FAC and the City of Paramount’s Cross-Complaint.

  1. Motion for Summary Judgment

    1. Standard

A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (C.C.P., § 437c(c).) "A moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact. [Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 178–179.]" (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., § 437c(f)(1).)

    1. Analysis

      Only negligence, based on vicarious liability, is alleged against EPC in the FAC. Paramount’s Cross-Complaint also is based on vicarious liability. (Cross-Complaint, Paramount, ¶¶ 7–8.)

      1. Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (C.C.P., § 437c(q).) Plaintiffs object to EPC counsel Thomas Shaver’s declaration, arguing it includes multiple statements of fact and legal conclusions. These statements were not material to the disposition of the motion, and will not be ruled on.

      1. EPC’s Initial Burden

        1. Going and Coming Rule

          EPC argues that Defendant Garcia was not acting within his scope of employment when he collided with the decedent. Specifically, EPC argues Garcia was commuting to work at the time of the incident.

          An employer is liable for an employee’s tortious actions when the employee is acting within the scope of employment. (Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, 685.) However, “[a]n employee’s commute to and from the workplace is generally not considered to be within the course and scope of employment.” (Ibid.) An exception to this rule is the incidental benefits rule, where the commute “ ‘involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.’ [Citations.]” (Newland, supra, 24 Cal.App.5th at 687.)

          Another exception is the required vehicle exception, which holds “that an employee is acting in the course of employment during his or her commute when the employer requires the employee to bring a car to work.” (Ibid.) So, if an employee is required to have their car available for work every day, the act of driving the car to work falls within the scope of employment. (Ibid.)

          EPC provides evidence showing the following:

This evidence shows that Garcia was commuting to work at the time of the incident. His commute is unusual in that it contains two parts: (1) his regular commute to pick up the company owned vehicle, and (2) his work van drive from Paramount to EPC’s office. The evidence suggests the incident occurred during Garcia’s regular commute, without any employer orders, limitations, or benefit.

EPC has met its initial burden of showing that Garcia was acting outside the scope of employment at the time of the incident. The burden now shifts to plaintiffs to show a triable issue of material fact.

      1. Plaintiffs’ Burden

Plaintiffs contend that Garcia was paid by EPC for his commuting time, bringing this action within the incidental benefits exception to the going and coming rule.

An employer may either expressly or impliedly agree to extend the employer-employee relationship to cover commuting. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.) The agreement can be inferred if the employer provides transportation or “ ‘from the fact that the employer compensates the employee for the time consumed in traveling to and from work.’ [Kobe v. Industrial Acc. Comm. (1950) 35 Cal.2d 33, 35.]” (Ibid.). It is the conferring of a benefit to the employer, “not common to commute trips by ordinary members of the work force,” that extends vicarious liability. (Id. at 962.) In Hinman, the employer derived a benefit by enlarging the geographical pool from which it drew its labor. (Ibid.)

“ ‘Generally, whether an employee is within the scope of employment is a question of fact; however, when the facts of the case are undisputed and conflicting inferences may not be drawn from those facts, whether an employee is acting within the scope of employment is a question of law. [Citation.]’ [Citation.]” (Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1107.)

Plaintiffs provide the following evidence:

This evidence raises an inference that Garcia was paid for his entire commute, not just for his time in the company vehicle. As discussed in Hinman, compensation for an employee’s commute time is strong indicia of an agreement to extend the employer-employee relationship to cover Garcia’s commute. (Hinman, supra, 2 Cal.3d at 961.) Accordingly, plaintiffs have provided evidence that raises a triable issue of material fact as to whether Garcia was acting within the course and scope of his employment.

The motion for summary judgment is denied.

  1. Fees and Costs Motions

    1. Standard

      1. Recoverable costs

Code of Civil Procedure § 1032(a)(b) states that a prevailing party is entitled as a matter of right to recover costs in any action or proceeding, unless a statute expressly states otherwise.

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, Rule 3.1700(a)(1).) “If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at 699.)

Per Code of Civil Procedure § 1033.5(c) provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mention in this section . . . may be allowed . . . in the Court’s discretion.” (C.C.P., § 1033.5(c)(4).)

      1. Attorney’s fees as costs

Code of Civil Procedure § 1033.5(a) lists the costs that are recoverable and includes attorney’s fees when they are authorized by either contract, statute, or law. (C.C.P., § 1033.5(a)(10).) “ ‘[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hour rate . . . . The reasonable hourly rate is that prevailing rate in the community for similar work. [Citations.] The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. [Citation.]’ [PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095]” (City of Santa Rosa v. Patel (2010) 191 Cal.App.4th 65, 69.)

Various factors to be considered are: “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them; (3) the extent to which the nature of the litigation precluded other employment by the attorneys’ (4) the contingent nature of the fee award. [Citation.]” (Ibid.) An adjustment may also account for the “ ‘lack of overall success.’ ” (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 425.) “The ‘ “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.” ’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

    1. Analysis

      1. Paramount Costs

Paramount requests $12,634.11 in costs. Plaintiffs challenge a $2,013.95 charge for photocopies, a $4,744.24 charge associated with Second Image National, LLC, $600.55 for Westlaw Research, a $380.08 charge associated with NRC Discovery, and $4,018.60 in depositions costs.

        1. Photocopies

Photocopies of exhibits are allowed if they were reasonably helpful to the trier of fact. (C.C.P., §

The burden remains on Paramount to justify its costs. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698–699.) Paramount argues it spent $567.40 on compensable exhibit photocopies, but its evidence is an undifferentiated copy of all expenses in the case. Although defense counsel states in their opposition brief that $567.40 in copying was related to the summary judgment motion, there is no declaration to this effect. The Court therefore cannot determine which costs are appropriate. Paramount has failed to meet its burden.

The Court taxes $567.40 from the photocopy category, bringing this category to zero.

        1. Second Image National, LLC

The $4,744.24 Second Image National, LLC, charge was categorized as “other” by Paramount in its Memorandum of Cost. Paramount argues that it used Second Image National, LLC, to issue deposition subpoenas.

Code of Civil Procedure § 1033.5(a)(3)(A) allows for the recovery of costs for taking, video recording, and transcribing necessary depositions. This includes deposition subpoenas for business records. (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 577–578.) These costs are compensable and supported by the invoices attached as Exhibit 3. (Decl. Ferrante-Alan, Exh. 3.)

Plaintiffs argue that $352.60 were deposition subpoenas to Garcia’s insurer that were related to Paramount’s Cross-Complaint, not plaintiff’s FAC, so it was not necessary to Paramount’s defense. (Decl. Ferrante-Alan, Exh. 3.) The Court agrees and reduces this cost by that amount.

The Court taxes Paramount’s “other” cost category by $352.60.

        1. Westlaw Research

Paramount claims $600.55 for Westlaw research. Fees for legal research are not permitted. (Ladas v. California State Auto. Assn (1993) 19 Cal.App.4th 761, 776.) The court in Ladas determined that the research fees were investigative fees, which are disallowed under Code of Civil Procedure § 1033.5(b)(2). (Ibid.)

Paramount points to two unpublished District Court rulings, Moore v. IMCO Recycling of CA, Inc. (C.D. 2005) 2005 WL 5887180 and Pande v. ChevronTexaco Corp. (N.D. Cal. 2008) 2008 WL 906507, to argue that the Ladas opinion is showing age. This is unpersuasive. Both parties acknowledge that this Court is bound by the decision in Ladas. Additionally, both federal opinions concern attorney fee motions, where attorneys’ fees are considered costs. Attempting to recover legal research without any attorney fee statute, contract, or law is improper.

The Court taxes $600.55 for Westlaw research.

        1. NRC Discovery

The $380.08 NRC Discovery cost are mislabeled photocopy costs associated with the scanning and delivering of the oversized maps and engineering plans. The scanned exhibits were helpful to the Court, but an oversized physical copy was never submitted.

The Court taxes the second invoice of $108 for an oversized copy.

        1. Depositions

The Court finds the deposition costs, including transcribing and video recording, to be reasonable and compensable.

The motion to tax Paramount’s costs is granted in part, by taxing $1,628.55 in costs. Paramount is awarded $9,559.01 in costs.

      1. Willdan Costs and Attorneys’ Fees

Willdan requests $1,951 in costs and $85,923.00 in fees.

        1. Motion to Tax Costs | Willdan

Plaintiffs challenges the conclusory nature and vagueness of Willdan’s claimed costs. Plaintiffs note that Willdan filed its Memorandum of Costs on the optional Judicial Council summary form MC-010 but did not file the corresponding MC-011 worksheet form, resulting in unexplained costs. Although Plaintiffs challenge the entire memorandum, they substantively target the $557.00 for court reporter fees and $570.16 listed as “other.”

Unless otherwise expressly authorized by law, transcripts of court proceedings are not recoverable as costs unless the Court orders the transcripts. (C.C.P., § 1033.5(b)(5).) Transcripts are different than court reporter fees, which are allowable under subsection (a)(11). (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58.) However, Willdan is requesting court reporter fees for a hearing that did not occur because plaintiffs submitted on the tentative. As the court reporter was unnecessary, so is this cost.

The $570.16 listed as “other” is unexplained. This leaves the Court with no means to measure the item’s necessity to the litigation. (Oak Grove School Dist., supra, 217 Cal.App.2d at 699.) In opposition, Willdan withdraws $412.55 as erroneous, but maintains that $152.50 are in messenger fees. (Opp. Br. at p. 6.) Willdan’s argument lacks a description as to how these fees were necessary to the litigation instead of merely beneficial. These expenses must be taxed.

Willdan also claims $134 in travel to what appears to be Santa Fe Springs (Decl., Cogger, Exh. B, pg. 1), which is less than a half-hour drive from Willdan counsel’s office in downtown Los Angeles. This cost is either unreasonable or inadequately substantiated and must be taxed.

The remaining charges, including the electronic filing fees, appear proper for Willdan’s filings in this case.

The motion to tax is granted, in part, and Willdan’s costs are taxed $1,261.16. Willdan is awarded $689.84 in costs.

        1. Motion for Attorneys’ Fees | Willdan

Attorneys fees are sought pursuant to Code of Civil Procedure § 411.35, which requires that a certificate of merit be filed and served on the defendant in a professional negligence action that involves an architect or engineer. The certificate must state that the plaintiff’s attorney has consulted and received an opinion from an expert in the field, leading the attorney to conclude the action is meritorious. (C.C.P., § 411.35(b)(1).)

The statute’s purpose is to “ ‘discourag[e] frivolous professional negligence suits against registered civil engineers’ by imposing a sanction on the noncomplying plaintiff or cross-complainant. [Citations.]” (UDC-Universal Development, L.P. v. CH2M Hill (2010) 181 Cal.App.4th 10, 28.) To further that end, subsection (h) states, in pertinent part: “If the trial judge finds there has been a failure to comply with this section, the court may order a party, a party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of the failure to comply with this section.”

In this case, Plaintiffs failed to include the certificate of merit when they initially served Willdan. Plaintiffs’ attempt to cure this deficiency by attaching the certificate to the FAC was inadequate, because the relation back doctrine does not apply to certificates of merit. (see Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542.) The Court sustained Willdan’s demurrer without leave to amend.

Assessing attorneys’ fees will not further the statute’s purpose of dissuading frivolous lawsuits. The failure to attach was a technical error that, because of precedent, could not be corrected; it did not speak to the merits of this case.

The motion for attorneys’ fees is denied.

  1. Ruling

    The motion for summary judgment is denied.

    The motion to tax Paramount’s costs is granted in part. Paramount’s costs are taxed $1,628.55. Paramount is awarded $9,559.01 in costs.

    The motion to tax Willdan’s costs is granted in part. Willdan’s costs are taxed $1,261.16. Willdan is awarded $689.84 in costs.

    Willdan’s motion for attorneys’ fees is denied.

Case Number: BC668662    Hearing Date: January 23, 2020    Dept: A

# 11. Gabriel Ramirez, et al. v. Asuncion Garcia, et al.

Case No.: BC668662

Matter on calendar for: Demurrer; Motion to Quash Deposition Subpoena

Tentative ruling:

  1. Background

    This is a wrongful death and survival action. On June 29, 2016, decedent Rosa Salazar was proceeding through the intersection of Garfield Avenue and Jackson Avenue when Defendant Asuncion Garica allegedly turned left in front of her, resulting in a fatal collision. Plaintiffs allege the intersection was dangerous because of a 49-foot offset. Defendants also include the City of Paramount, the State of California, and Willdan Engineering (Doe 1). Defendant Garcia has filed a Cross-Complaint against Defendant City of Paramount.

    The First Amended Complaint (“FAC”) alleges the following causes of action:

  1. Negligence, and

  2. Dangerous Condition of Public Property

    Defendant Willdan now demurs to the FAC. Cross-Complainant Garcia moves to quash a deposition subpoena served upon his insurer, Geico, which was served by Cross-Defendant City of Paramount.

    For the reasons set forth below, the Court finds as follows:

  1. Standard

    1. Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

  1. Analysis

    1. Judicial Notice

The Court grants Defendant Willdan’s request for judicial notice of the declaration filed alongside Paramount’s Summary Judgment, the original Complaint filed in this matter, and the Department of Consumer Affair’s record. However, the Court does not take judicial notice of the facts contained therein. (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134.)

    1. Certificate of Merit Under Civil Code

      Code of Civil Procedure § 411.35 requires a certificate of merit be filed and served on the defendant in a professional negligence action that involves an architect or engineer. The certificate must state that the plaintiff’s attorney has consulted and received an opinion from an expert in the field, leading the attorney to conclude the action is meritorious. The certificate must be served with the complaint, or counsel must provide an adequate excuse for not timely doing so. (C.C.P., § 411.35.) When an attorney is unable to obtain a certificate of merit before the statute of limitations period runs, they are allocated an additional 60 days to obtain, file, and serve the certificate from the date of service of the complaint. (C.C.P., § 411.35(b)(2).)

      The alleged incident occurred on June 28, 2016. The original Complaint was filed July 17, 2017. Defendant Willdan was added to the Complaint on July 24, 2019. Defendant Wildan filed a demurrer that raised the issue, resulting in the FAC, filed November 11, 2019, which includes a certificate of merit.

      Defendant Willdan, relying on Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, argues Plaintiffs did not file the certificate within the applicable window and that the relation back doctrine does not apply to certificates of merits. Plaintiffs attempt to distinguish Curtis and argue the relation back doctrine does apply to the certificate of merit because the Curtis court was not faced with a recently added Doe defendant.

      Curtis involved a crane operator who was injured when his crane tipped over on May 5, 2014. The complaint was then filed on May 3, 2016, naming the at-fault engineer. A certificate of merit was not filed until December 1, 2016, when it was filed with an amended complaint. (Curtis, supra, 16 Cal.App.5th at 545.) The court analyzed whether the certificate could accompany the amended complaint in relating back to the originally filed complaint and found that it could not. The court focused on the specific language of the statute: “Section 411.35(a) requires that ‘on or before the date of service’ of a complaint the plaintiff ‘shall file and serve the certificate specified by subdivision (b).’ ” (Curtis, supra, 16 Cal.App.5th at 548.) The court noted that it did not find “any cases supporting the proposition that the relation-back doctrine applies to a certificate which, by statute, is required to be filed ‘on or before the date of service’ of the original complaint. [C.C.P., § 411.35(a).]” (Ibid.) Nor do Plaintiffs provide any here. The court concluded by stating that “[a]pplying the relation back doctrine in this situation would render meaningless the statutory requirement that the certificate be filed ‘on or before the date of service.’ [C.C.P., § 411.35(a).]” (Ibid.)

      The instant case involves procedural facts of a slightly different nature. Plaintiffs argue they did not know of Defendant Willdan or its involvement until the February 26, 2019 summary judgment motion was filed. This was outside the two-year statute of limitations and well beyond 60 days of the original complaint’s filing. Plaintiffs argue Curtis did not involve a reconciliation between Sections 474, allowing fictitious naming of defendants, and Section 411.35. However, the Curtis court did tangentially mention Doe defendants when it analyzed a related requirement under Code of Civil Procedure § 340.1. (Curtis, supra, 16 Cal.App.5th at 550.) In that analysis, the Court noted that Section 411.35(a) “require[s] that a certificate be filed before any defendant (be it a Doe or named defendant) is served with the original complaint.” (Ibid. [emphasis omitted].)

      Defendant Willdan’s involvement was discovered in February 2019, but Plaintiffs failed to include the certificate when they served Defendant Willdan with the original Complaint in July of 2019. Plaintiffs’ failure to serve the certificate at that time was an error that cannot be corrected at this stage in the proceedings. Section 411.35(b)(2) clearly outlines the possible circumstances that excuse the serving a complaint without the necessary certificate—a fast approaching statute of limitations—and those circumstances are not met here. By attempting to hitch the certificate to the FAC, Plaintiffs have aligned the pertinent facts of this case with those in Curtis, and the action as to Defendant Willdan must be dismissed. The opinion in Curtis leaves space for later service of a certificate on a Doe defendant, but that must coincide with the initial service upon that defendant.

      Additionally, Plaintiffs’ original Complaint alleges that the City’s employees, including its engineers, were negligent in the construction of the intersection. (RJN, Exh. C ¶ 24.) Had Plaintiffs included a certificate at that time, it would have functioned against all Defendants under Section 411.35(c).

      The demurrer is sustained without leave to amend.

    2. Motion to Quash

Cross-Defendant City of Paramount requested documents from Cross-Complainant Garcia’s insurer, Geico. Cross-Complainant Garcia objected, arguing in the motion to quash that the request sought privileged material. However, Geico was not informed of the motion to quash before it produced the requested documents. Cross-Complainant Garcia’s counsel has reviewed the documents and found that they do not include any privileged documents. (Opp. Exh. A.) The Reply then morphs this motion into a request for sanctions because counsel for Cross-Defendant sent the produced documents to all of the parties in this action.

The Court will not issue sanctions without affording the other party a proper mechanism to oppose. This motion to quash is now moot. If Cross-Complainant wishes to pursue the matter, he will need to do so by filing a separate motion for discovery sanctions.

All subsequent motions must comply with this Court’s rules, which require an informal discovery conference before a discovery motion is heard.

  1. Ruling

    The demurrer is sustained without leave to amend.

    The motion to quash is moot.

    Next dates:

    Notice:

Case Number: BC668662    Hearing Date: November 21, 2019    Dept: A

# 13. Gabriel Ramirez, et al. v. Asuncion Garcia, et al.

Case No.: BC668662

Matter on calendar for: Demurrer

Tentative ruling:

  1. Background

In response to the demurrer, Plaintiffs have filed the First Amended Complaint. A plaintiff has the right to amend before the opposition was due; a requirement that Plaintiffs have met. (C.C.P., § 472.) The demurrer is taken off-calendar.

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